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Avoiding Santa Clara v. Martinez: The Litigation in Federal Court of Civil Actions Under the Indian Civil Rights Act

While Santa Clara Pueblo v. Martinez precisely holds that the Indian Civil Rights Act (ICRA) does not create, either expressly or by implication, a federal civil cause of action upon which a suit in federal court might be based for violation of its guarantees and it might appear that the issue is closed and civil actions under the ICRA would be brought in tribal court for final determination, but the combination of eager plaintiffs, clever attorneys and receptive judges has kept the ICRA alive in federal court. This article discusses those cases in which Martinez has been avoided and a federal court sets itself to the task of inspecting and potentially restricting tribal activity. It addresses the jurisdictional question involved in those cases, while glancing at the merits. It also discusses each of the Martinez-avoidance devices which have been attempted, both successfully and unsuccessfully, and their interplay. Additionally, it looks at the theoretical basis and practical impact of each device and concludes that these devices are not within the spirit, if even the letter, of Martinez.